Hatami v. Sweden

Hatami v. Sweden, 32448/96, Council of Europe: European Commission on Human Rights, 23 January 1997, available at: http://www.refworld.org/docid/3ae6b6538.html [accessed 9 December 2016]

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EUROPEAN COMMISSION OF HUMAN RIGHTS

AS TO THE ADMISSIBILITY OF Application of HATAMI v. SWEDEN

REF. NO:

ORIGIN: COMMISSION (Plenary)

TYPE: DECISION

PUBLICATION:

TITLE: HATAMI v. SWEDEN

APPLICATION NO.: 32448/96

NATIONALITY: Iranian

REPRESENTED BY: LILLIESKÖLD, E., lawyer, Stockholm

RESPONDENT: Sweden

DATE OF INTRODUCTION: 19960722

DATE OF DECISION: 19970123

APPLICABILITY:

CONCLUSION: Admissible

ARTICLES: 3

RULES OF PROCEDURE:

LAW AT ISSUE:

Chapter 8 sections 1-4 of the Aliens Act

STRASBOURG CASE-LAW:

AS TO THE ADMISSIBILITY OF

Application No. 32448/96 by Korosh HATAMI against Sweden The European Commission of Human Rights sitting in private on 23 January 1997, the following members being present: Mr.S. TRECHSEL, President Mrs. G.H. THUNE Mrs. J. LIDDY MM.E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS F. MARTINEZ L. LOUCAIDES J.-C. GEUS B. MARXER M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS J. MUCHA D. SVÁBY G. RESS A. PERENIC C. BÎRSAN P. LORENZEN K. HERNDL E. BIELIUNAS E.A. ALKEMA M. VILA AMIGÓ Mrs. M. HION Mr.R. NICOLINI Mr.H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 22 July 1996 by Korosh HATAMI against Sweden and registered on 30 July 1996 under file No. 32448/96; Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission; Having regard to the observations submitted by the respondent Government on 10 October 1996 and the observations in reply submitted by the applicant on 8 November 1996 as well as the information submitted by the Government on 12 December 1996 and by the applicant on 9 January 1997; Having deliberated; Decides as follows:

THE FACTS

The applicant is an Iranian citizen, born in 1971. He is a student and resides at present at Hässelby, Sweden. Before the Commission the applicant is represented by Mrs Ewa Lilliesköld, a lawyer practising in Stockholm. The facts of the case, as submitted by the parties, may be summarised as follows. A.Particular circumstances of the case The applicant grew up in the town of Borojerd in Iran together with his parents, four brothers and three sisters. One of his brothers was executed in Iran in 1990. Two other brothers and one sister are now living in Sweden as refugees. The remaining brother and sisters as well as the applicant's mother are living in Iran. His father died in 1986. In 1985, at the age of 14, the applicant commenced his political activities within the Mujahedin organisation. The first two years he was considered a sympathiser which meant that he was a member of a group and was expected to distribute leaflets and to produce slogans. After two years he became the head of a group and was responsible for keeping contact with superiors and other contact persons within the organisation. His group usually met in a student accommodation where they also kept a duplicating machine. The applicant was also in possession of two weapons which were hidden nearby. On 6 February 1990 the applicant was arrested by the SEPAH (the Iranian Security Police) in Borojerd, suspected of carrying out illegal political activities. A leaflet was found in his pockets and he was taken to a prison in Borojerd. The applicant remained detained for two years, until 2 February 1992 when he was released due to lack of evidence. He was ordered to report once a month to the police and he submits that he was under surveillance following his release. While imprisoned the applicant was interrogated frequently and subjected to torture and other inhuman and degrading treatment. He submits that he was handcuffed and beaten while tied to chairs or to poles in a so-called "grilled chicken" position. His leg was broken during one of these beatings. He was furthermore subjected to electric shocks to his finger tips and his genitals. Two to three months after his release his former contact person within the Mujahedin organisation approached the applicant who subsequently again took up his position as the head of a group of four. The group continued to meet at the student accommodation and to distribute leaflets. In December 1992 the applicant travelled from Borojerd to Teheran. While the applicant was there a member of his group was arrested. Through his contact person the applicant was subsequently informed that this member had, under torture, revealed that the applicant was the head of the group, where the group met and what equipment they had for their work within the Mujahedin organisation. Thus, after six days in Teheran the applicant and his contact person went to Sanandaj in the north of Iran as he was convinced that he was wanted by the security police in Borojerd. The applicant remained in Sanandaj for approximately six months. During that period he returned to Teheran once and applied for a tourist visa to Sweden at the Swedish Embassy. He used a false passport which he had received from his contact person. On 30 March 1993 the Swedish Embassy turned down the applicant's request on the ground that the person in Sweden referred to by the applicant was not known to be residing at the address indicated. Back in Sanandaj the applicant decided to leave Iran illegally. In June 1993 he travelled by car to Bandar Abbas in the southern part of Iran and used a false ID-card when stopped at various check-points. In Bandar Abbas the applicant paid a person 300,000 toman. He then left for Dubai on 7 June 1993. In Dubai the applicant met another person who took him by plane to Amsterdam. There he received an air ticket and a boarding pass for Stockholm. He arrived in Sweden on 13 June 1993 and applied for asylum upon arrival. On 1 July 1993 the National Immigration Board (Statens Invandrarverk, hereinafter the SIV) drew up a report on the applicant's reason for his request for asylum and held an oral hearing on 30 December 1993. In support of his request the applicant also submitted a medical certificate of 14 January 1994 which contains an account of the information provided by the applicant concerning his detention, the alleged ill-treatment in Iran and the scars found on his body. By decision of 13 July 1994 the SIV rejected the applicant's request for asylum and ordered his expulsion. The SIV did not find it credible that the applicant, for political reasons, risked persecution in Iran. In its decision the SIV stated inter alia as follows: (Translation) "In a general evaluation of the circumstances, the SIV does not believe [the applicant's] statement that because of certain political reasons he risks persecution in his home country, if returned. The SIV does not think that the information given by [the applicant] regarding his political activity is credible, for example the storage of the duplication machine and weapons in the same locality as that in which they held their meetings, primarily due to the risk of being exposed. Comparing this to the background information that the SIV has about the risks associated with anti-government information in Iran, the SIV finds it unlikely that he would dare to continue his political activity after the stated imprisonment as he was after this ordered to report [to the authorities] and was under surveillance. [The applicant] has, during the investigation, supplied different information for instance regarding the weapons he claims to have stored on behalf of Mujahedin and regarding the point in time for his order not to travel. The SIV also questions the information about how he was exposed when his friend was arrested. The SIV also questions if it is likely that [the applicant] chooses to travel to Teheran and apply for a visa to Sweden when he is wanted and when the application can also be made by post and even, if it is likely that he, as a wanted person, wants to leave his home country in South Iran to stay in North Iran for six months. As regards the medical certificate which has been submitted, it does not support the affirmation that the fracture of the applicant's leg is an effect of alleged torture. Nor does it support the contention that the urethra condyloma from which the applicant is suffering could have arisen as a result of alleged torture. The SIV notes that the applicant has been unable to present the documents he used when going to Sweden. In spite of the explanation given in this respect, his conduct cannot be understood in any other way than as an attempt to conceal facts of significance for making an assessment of his need of protection in Sweden." The applicant appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden) which at the applicant's request held a supplementary hearing on 8 May 1996 at which the applicant, his counsel and an interpreter were present. At the hearing the applicant provided further details about his activities in Iran and other facts relevant to his request for political asylum and answered questions from the Board. In support of his appeal the applicant also invoked a medical expert opinion by Dr SJ of the Center for Torture and Trauma Survivors at Karolinska sjukhuset in Stockholm (CTD), dated 3 April 1995. On 1 July 1996 the Board rejected the appeal and ordered the applicant's expulsion. The Board gave the following reasons for its decision: (Translation) "The Board notes that [the applicant] did not have a passport, nor any other travel document, when arriving in Sweden. If an asylum applicant destroys or in any other way leaves behind the passport document that has been used for the journey here, the conclusion normally is that the applicant is withholding information that would be of the utmost importance for the evaluation of the asylum application. The trust in other information that the applicant provides, can then be reduced. The Board is of the opinion that if the applicant has provided a coherent story that in itself is acceptable and that further can be supported by other information in the case, the fact that the applicant has lost the passport document cannot result in a conclusion that the story lacks truth. There is also reason to note that even if what is stated regarding the passport document can raise certain doubts, these doubts should not, with the principles for evaluation of information that are applicable in asylum matters, form the verdict if the applicant in all other matters appears to be credible and his story probable. From the documents in the case of [the applicant], it can be noted that he applied for a visa to Sweden at the Embassy of Sweden in Teheran on 13 January 1993. From the application for a visa it appears that he has a passport, dated 11 November 1992 and valid until 11 November 1995. [The applicant] states that he received the passport through his contact person and that it was not legally authorised. He has also stated that he did not know that he was not allowed to travel when he applied for a visa. [The applicant] has stated that after being released from prison he was ordered to report to the police and subject to surveillance by the authorities, and it is therefore the opinion of the Board that it is not credible that he should have applied for a visa with a false passport document; because of the rigorous checks when leaving Iran it is unlikely that [the applicant] would take such a risk, trying to leave Iran with a false passport document. According to the evaluation by the Board, [the applicant] has applied for a visa with a legal passport document, which indicates that he was not subjected to any special interest by the authorities. The Board also questions that [the applicant] should have visited a foreign embassy in Teheran, which is guarded by Iranian police, if he had been wanted. The Board finds that [the applicant's] information about the reason as to why he was arrested and then imprisoned for two years and subjected to torture, is vague and less probable. The Board also finds in the SIV's stated reasons, that there is reason to question [the applicant's] information about his political activity and that after the stated imprisonment he should have been able to continue his political activities despite the fact that he was under surveillance by the authorities. The statements, etc. from CTD that have been provided in the case show that [the applicant] has healed scars in the face, on his neck, arms, body, right hip and outer genitalia. According to the Board, this does not support the conclusion that [the applicant's] scars and wounds are a result of actions based on his stated anti-government activities in Iran. In a total evaluation of what [the applicant] has stated and other facts that have been produced in the case, the Board considers that he cannot be regarded as a refugee according to chapter 3 section 2 in the Aliens Act (1989:529). There is no other reason, humanitarian or other, for granting [the applicant] a residence permit." Following the decision of the Aliens Appeals Board there were no impediments against enforcing the expulsion order. However, having been informed about the Commission's recommendation under Rule 36 in the Commission's Rules of Procedure, the SIV decided on 30 July 1996 to stop the enforcement until further notice. This decision is still valid. B.Relevant domestic law Under chapter 3 section 1 of the Aliens Act an alien may be granted asylum because he is a refugee or, without being a refugee, if he wishes not to return to his home country because of the political situation there and provided he can put forward weighty reasons in support of his wish. The term "refugee" refers to an alien who is staying outside the country of which he is a citizen because he feels a well-founded fear of being persecuted in that country, having regard to his race, nationality, membership of a special social group or his religious or political convictions, and who, on account of his fears, cannot or does not wish to avail himself of his home country's protection (chapter 3 section 2). An alien, as referred to in chapter 3 section 1, is entitled to asylum. Asylum may, however, be refused inter alia if, in the case of an alien falling under chapter 3 section 1 subsection 3, there are special grounds for not granting asylum (chapter 3 section 4). An alien may be refused entry into Sweden if he lacks a visa, residence permit or other permit required for entry, residence or employment in Sweden (chapter 4 section 1 subsection 2). When considering whether to refuse an alien entry or to expel him, it must be examined whether, pursuant to chapter 8 sections 1-4 he can be returned to a particular country or whether there are other special obstacles to the enforcement of such a decision (chapter 4 section 12). An alien who has been refused entry or who is to be expelled may never be conveyed to a country where there is firm reason to believe that he would be in danger of being subjected to capital or corporal punishment or torture, or to a country where he is not protected from being sent to a country where he would be in such danger (chapter 8 section 1). When a refusal of entry or an expulsion order is put into effect, the alien may not be sent to a country where he would risk being persecuted, or to a country where he would not be protected from being sent to a country where he would risk being persecuted (chapter 8 section 2 subsection 1). An alien may, however, be sent to such a country if he cannot be sent to any other and if he has shown, by committing a particularly serious offence, that public order and safety would be seriously endangered by his being allowed to remain in Sweden. However, this does not apply if the threatened persecution in the receiving State implies danger to his life or is otherwise of a particularly grave nature. Similarly, the alien may be sent to a country referred to in subsection 1 if he has engaged in activities endangering the national security of Sweden and if there is reason to suppose that he would continue to engage in such activities in Sweden and he cannot be sent to any other country (subsection 2). If the enforcement is not subject to any obstacles under, inter alia, chapter 8 sections 1 and 2, an alien who has been refused entry or who is expelled is to be sent to his country of origin or, if possible, to the country from which he came to Sweden. If the decision cannot be put into effect in the manner indicated in subsection 1, or there are other special grounds for doing so, the alien may be sent to some other country instead (chapter 8 section 5). When considering a request for a residence permit lodged by an alien to be expelled according to a decision which has acquired legal force, the SIV (and in certain cases the Government too) may stay execution of that decision. For particular reasons, the SIV may also otherwise stay execution (chapter 3 section 10). If the enforcing authority finds that enforcement cannot be carried out or that further information is needed the authority is to notify the SIV accordingly. In such a case, the SIV may decide on the question of enforcement or take such other measures as are necessary (chapter 8 section 13).

COMPLAINTS

The applicant complains that an expulsion to Iran would amount to a violation of Article 3 of the Convention. He claims that he risks persecution and ill-treatment on account of his political activities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 July 1996 and registered on 30 July 1996. On 30 July 1996 the President of the Commission decided to indicate to the respondent Government, in accordance with Rule 36 of the Commission's Rules of Procedure, that it was desirable in the interests of the Parties and the proper conduct of the proceedings before the Commission not to deport the applicant to Iran until the Commission had had the opportunity to examine the application. The President furthermore decided to invite the respondent Government to submit written observations on the admissibility and merits of the application. Following two extensions of the time-limit fixed for this purpose the Government submitted their observations on 10 October 1996. Following one extension of the time-limit the applicant submitted his observations in reply on 8 November 1996. Further information was submitted by the Government on 12 December 1996 and by the applicant on 9 January 1997.

THE LAW

The applicant complains that, if returned to Iran, he risks persecution in view of his political activities. He invokes Article 3 (Art. 3) of the Convention which reads: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government do not raise any objections in respect of the six months' rule set out in Article 26 (Art. 26) of the Convention and leave it to the Commission to decide whether domestic remedies have been exhausted, having regard to the fact that it is always possible to lodge a new request for a residence permit with the SIV which must deal with it, provided there are new circumstances which could call for a different decision. As regards the substance of the application the Government point out that an alien's right to enter and reside in a particular country is not as such guaranteed by the Convention, nor is the right to political asylum. However, the Government acknowledge that where substantial grounds have been shown for believing that the person could, if extradited or expelled, face a real risk of being subjected to treatment contrary to Article 3 (Art. 3) in the country of destination the responsibility therefor would lie with the country extraditing or expelling the alien concerned. The Government submit that the provisions on enforcement in the Swedish Aliens Act reflect almost exactly the same principles as have been outlined by the European Court of Human Rights when applying Article 3 (Art. 3) to extradition cases or to cases concerning expulsion. Under chapter 8 section 1 of the Aliens Act an alien refused entry or expelled may never be sent to a country where there are substantial grounds to believe that he would be in danger of suffering capital or corporal punishment or of being subjected to torture, nor to a country where he is not protected from being sent to a country where he would be in such danger. Thus, the Swedish immigration authorities have applied almost the same test as the Commission is carrying out when applying Article 3 (Art. 3) to the present case. In the circumstances of the present case the Government rely on and agree with the opinions of the Swedish immigration authorities and the reasons they have invoked, in particular having regard to their considerable experience in handling asylum cases concerning Iranian citizens. Thus, the Government maintain that no substantial grounds have been shown for believing that the applicant would face a real risk of treatment contrary to Article 3 (Art. 3) of the Convention if returned to Iran. The applicant maintains that the facts of the case disclose substantial grounds for believing that he would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention if returned to Iran. He has been arrested, imprisoned and ill-treated due to his political activities and it is undisputed that he and his family have been harassed by the Iranian authorities. The applicant furthermore maintains that the Swedish Government have totally misinterpreted the political situation in Iran where thousands of persons are undisputedly incarcerated for political reasons. Accordingly, there is every reason to believe that the facts as submitted by the applicant disclose reason to fear treatment contrary to Article 3 (Art. 3) of the Convention. The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. H.C. KRÜGER S. TRECHSEL Secretary President to the Commission of the Commission